OLOFU V. ITODO (2010)

Background

This consolidated appeal arose from the Kogi State Local Government election conducted on 26 July 2008. Michael Adejoh Itodo was nominated by the Peoples’ Democratic Party (PDP), screened and cleared by the Kogi State Independent Electoral Commission to contest the councillorship election for Ogugu Ward II in Olamaboro Local Government Council. He contested the election and, according to the certified result issued by the returning officer, won with 3,463 votes.

Despite the declared result, the Chairman of the Kogi State Independent Electoral Commission refused to issue Itodo with his certificate of return. Itodo was also not sworn in with the other elected councillors. He subsequently discovered that the PDP and electoral authorities intended to replace him with Enejo Solomon Musa, who had not contested the election. Itodo commenced proceedings by originating summons at the High Court of Kogi State, seeking declarations that he could not be substituted after the election, an order compelling the electoral commission to issue his certificate of return, and an order directing that he be sworn in as councillor.

The defendants raised preliminary objections. They argued that the dispute was either an internal political-party matter or a post-election complaint concerning undue return, which fell within the exclusive jurisdiction of the Local Government Election Tribunal. The High Court accepted the latter argument and struck out the action for want of jurisdiction. The Court of Appeal reversed that decision, treated the claim as one involving wrongful substitution, invoked its powers under section 15 of the Court of Appeal Act 2004, and granted reliefs in Itodo’s favour. The defendants appealed to the Supreme Court.

Issues

1. Whether the High Court had jurisdiction to entertain the action as constituted.
2. Whether the Court of Appeal was entitled to invoke section 15 of the Court of Appeal Act 2004 to determine the matter on its merits after the High Court had declined jurisdiction.
3. Whether a political party could substitute a candidate after an election had been conducted and the result declared.

Ratio Decidendi

The Supreme Court unanimously allowed the appeals. It held that jurisdiction is fundamental and is conferred by the Constitution or statute. A decision reached by a court without jurisdiction is a nullity, regardless of how carefully the proceedings were conducted. In determining jurisdiction, the court must examine the claimant’s originating process and the affidavit supporting it, rather than the defence or preliminary objection filed by the opposing parties.

The Court distinguished between pre-election disputes and post-election disputes. A political party’s choice of candidate is generally an internal matter over which the courts will not interfere. However, the law imposes strict conditions on the substitution of a candidate. Section 23 of the Kogi State Local Government Electoral Law 2004 required a party wishing to change its candidate to signify that intention in writing to the electoral commission not later than five days before the election. The use of the word “may” did not make the time requirement optional. It related to whether the party wished to pursue a substitution, not to whether the statutory deadline could be ignored.

Once the election had been held and Itodo’s name appeared on the official result as the successful candidate, it was too late to treat the dispute as a nomination or substitution matter. The real complaint concerned the refusal to issue the certificate of return to the declared winner and the purported return of a person who did not contest the election. That was a post-election complaint of undue return, reserved exclusively for the competent election tribunal.

Court Findings

The Court relied on sections 59(c), 66, 70(1)(a), 71 and 74 of the Kogi State Local Government Electoral Law 2004. Section 66 required that a certificate of return be issued to every candidate who won an election. The Court explained that “return” includes the declaration of the election result and the certificate of return. The electoral commission therefore had no lawful basis for withholding Itodo’s certificate after its returning officer had declared him the winner.

Nevertheless, the legal question of whether Musa had been unduly returned, and the consequential reliefs arising from the completed election, had to be determined by the election tribunal, not the regular High Court. Since the trial court lacked jurisdiction, the Court of Appeal also lacked jurisdiction to use section 15 of the Court of Appeal Act to rehear and determine the substantive dispute. That statutory power presupposes that the lower court had jurisdiction in the first place; it cannot create jurisdiction where none exists.

The Supreme Court also criticised the practice of respondents abandoning an original appeal and filing a separate appeal on the same grounds, instead of filing a respondent’s brief. The Court urged legal practitioners to discourage that procedural practice. It further admonished the Kogi State Government, the PDP and the electoral commission to act in the interest of democracy and restore public confidence in the electoral process.

Conclusion

The appeals were allowed. The judgment of the Court of Appeal delivered on 17 June 2010 was set aside, and the ruling of the High Court of Kogi State, Okpo Judicial Division, delivered on 7 May 2009, was restored and affirmed. The High Court’s decision that it lacked jurisdiction was therefore upheld. No order as to costs was made.

Significance

Olofu v. Itodo is significant for Nigerian electoral law because it confirms that candidate substitution must occur before the election and within the statutory period. A political party or electoral commission cannot replace a candidate after the electorate has voted, particularly with a person who did not contest. The decision also reinforces the constitutional and statutory exclusivity of election tribunals in determining post-election complaints such as undue return. Although the judgment did not finally install Itodo in office, it protected the integrity of the electoral process by recognising that the declared result could not lawfully be disregarded and by directing that the appropriate tribunal, rather than a regular court, determine the resulting election dispute.